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TMI Blog2010 (1) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... word complainant in section 145(1). . . . , it was not open to the High Court to fill up the self-perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant s evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant s evidence and to extend the same option to the accused as well. - CRL.A. 72 OF 2010, Arising out of SLP (Crl.) No.3915/2006, Arising out of SLP (Crl.) No(s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cross-examination of the witness. In terms of section 145(2), the accused can undoubtedly cross-examine a person whose evidence is given on affidavit but the accused cannot insist that the witness, on coming to Court, should first depose in examination-in-chief even in respect of matters which are already stated by him on affidavit ( vide paragraph 25 of the judgment). The High Court further explained that for the prosecution the occasion to summon any of its witnesses who have given their evidence on affidavit may arise in two ways. The prosecution may summon a person who has given his evidence on affidavit and has been cross-examined for re-examination . This right of the prosecution, the High Court observed, was not in dispute before it. The prosecution may also have to summon a witness whose evidence is given on affidavit in case objection is raised by the defence regarding the validity and/or sufficiency of proof of some document(s) submitted along with the affidavit. In that event the witness may be summoned to appear before the Court to cure the defect and to have the document(s) properly proved by following the correct legal mode ( vide paragraph 26 of the judgment). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings that were pending on February 6, 2003, the date on which those provisions were inserted in the Act? [appeal arising from SLP (Crl.) No. 4760/2006]. 3.Whether the right to give evidence on affidavit as provided to the complainant under section 145(1) of the Act is also available to the accused? [appeal arising from SLP (Crl.) No. 3915/2006]. 9. For a proper appreciation of the issues it would be necessary to examine the relevant legal provisions and to ascertain the object and reasons for which those provisions were brought into existence by making amendments in the Negotiable Instruments Act, 1881. The Negotiable Instruments Act was amended first by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 and a second time by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002. The first amendment inserted Chapter XVII in the Act, comprising sections 138 to 143. Section 138 made, for the first time in the legislative history of the country, the issuance of a cheque by any person in discharge of any debt or liability owed by him to its holder, that was not honoured by the banker because of insuffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing, to the drawer of the cheque within fifteen days of the receipt of the information by him from the bank regarding the return of the cheque unpaid; and ( c )the drawer of such cheque should have failed to make the payment of the said amount of money to the payee or the holder in due course of the cheque within fifteen days of the receipt of the said notice. It has also been provided that it shall be presumed, unless the contrary is proved, that the holder of such cheque received the cheque in the discharge of a liability. Defences which may or may not be allowed in any prosecution for such offence have also been provided to make the provisions effective. Usual provision relating to offences by companies has also been included in the said new Chapter. In order to ensure that genuine and honest bank customers are not harassed or put to inconvenience, sufficient safe-guards have also been provided in the proposed new Chapter. Such safeguards are ( a )that no Court shall take cognizance of such offence except on a complaint, in writing, made by the payee or the holder in due course of the cheque; ( b )that such complaint is made within one month of the date on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank account and if a cheque is drawn, it will not be returned. 13. The provisions of the newly inserted Chapter XVII, on coming into force with effect from 1-4-1989, brought in a veritable deluge of cases in the criminal court system. In the metropolitan cities and the commercial centres of the country, it almost appeared that the main function of the Magistrate s Court was to recover monies on behalf of parties on the wrong end of the commercial transactions that had gone sour. Complaints under section 138 of the Act came to be filed in such large numbers that it became impossible for the Courts to handle them within a reasonable time and it also had a highly adverse effect on the Court s normal work in ordinary criminal matters. A remedial measure was urgently required and the Legislature took action by introducing further amendments in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002. The 2002 amendment inserted in the Act for the first time sections 143 to 147 besides bringing about a number of changes in the existing provisions of sections 138 to 142. Section 143 gave to the Court the power to try cases summarily; section 144 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendments in the Negotiable Instruments Act, 1881, namely: ( i )to increase the punishment as prescribed under the Act from one year to two years; ( ii )to increase the period for issue of notice by the payee to the drawer from 15 days to 30 days; ( iii )to provide discretion to the Court to waive the period of one month, which has been prescribed for taking cognizance of the case under the Act; ( iv )to prescribe procedure for dispensing with preliminary evidence of the complainant; ( v )to prescribe procedure for servicing of summons to the accused or witness by the Court through speed post or empanelled private couriers; ( vi )to provide for summary trial of the cases under the Act with a view to speeding up disposal of cases; ( vii )to make the offences under the Act compoundable; ( viii )to exempt those directors from prosecution under section 141 of the Act who are nominated as directors of a company by virtue of their holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government, or the State Government, as the case may be; ( ix )to provide that the Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day-to-day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. 144. Mode of service of summons. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), and for the purposes of this Chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain, by speed post or by such courier services as are approved by a Court of Session. (2) Where an acknowledgement purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of sections 251 and 254 and especially section 273 of the Code. The accused, however, is fully protected, as under sub-section (2) of section 145, he has the absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination. Sub-section (3) of section 143 mandates that the trial would proceed, as far as practicable, on a day-to-day basis and sub-section (4) of the section requires the Magistrate to make the endeavour to conclude the trial within six months from the date of filing of the complaint. Section 144 makes the process of service of summons simpler and cuts down the long time ordinarily consumed in service of summons in a regular civil suit or a criminal trial. Section 145 with its non obstante clause, as noted above, makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant (or any of his witnesses) may be read in evidence subject to all just exceptions . In other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouncing) on a single day by a private telecom company before a Bangalore Court, informed the Chief Justice of India, K.G. Balakrishnan, urging the Government to appoint more Judges to deal with 1.8 crore pending cases in the country. The number of complaints which are pending in Bombay courts 1 seriously cast shadow on the credibility of our trade, commerce and business. Immediate steps have to be taken by all concerned to ensure restoration of the credibility of trade, commerce and business. 19. The situation arising from the mounting arrears is so grave that in the Vision Statement presented by the Union Minister for Law and Justice to the Chief Justice of India in course of the National Consultation for strengthening the Judiciary towards reducing pendency and delays held on 24-10-2009, cases of dishonoured cheques were cited among one of the major bottlenecks in the criminal justice system. In paragraph 2 under the heading the Action Plan it was stated as follows : 2. Identification of Bottlenecks: Clearing the System 1.Studies have shown that cases under certain statutes and area of law are choking dockets of magisterial and specialised courts, and the same n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the application made by the accused made it quite clear that a person giving his evidence on affidavit, on being summoned under section 145(2) at the instance of the accused must begin his deposition with examination-in-chief, before he may be cross-examined by the accused. In this regard, he submitted that section 145 did not override the Evidence Act or the Negotiable Instruments Act or any other law except the Code of Criminal Procedure. He further submitted that the plain language of section 145(2) was clear and unambiguous and was capable of only one meaning and, therefore, the provision must be understood in its literal sense and the High Court was in error in resorting to purposive interpretation of the provision. In support of the submission, he relied upon decisions of this Court in Dental Council of India v. Hari Prakash [2001] 8 SCC 61 and Nathi Devi v. Radha Devi [2005] 2 SCC 271. Mr. Siddharth Bhatnagar, learned counsel for the appellant in the appeal arising from SLP (Crl.) No. 1106/2007, also joined Mr. Ranjit Kumar in the submission based on literal interpretation. He also submitted that ordinarily the rule of literal construction should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ways. The prosecution may summon a person who has given his evidence on affidavit and has been cross-examined for re-examination . The prosecution may also have to summon a witness whose evidence is given on affidavit in case objection is raised by the defence regarding the validity and/or sufficiency of proof of some document(s) submitted along with the affidavit. In that event the witness may be summoned to appear before the Court to cure the defect and to have the document(s) properly proved by following the correct legal mode. This appears to us as the simple answer to the above question and the correct legal position. Any other meaning given to sub-section (2) of section 145, as suggested by Mr. Ranjit Kumar would make the provision of section 145(1) nugatory and would completely defeat the very scheme of trial as designed under sections 143 to 147. 23. Mr. Ranjit Kumar next submitted that section 145(2) was identical to section 296(2) of the Code of Criminal Procedure and this Court, in its decision in State of Punjab v. Naib Din [2001] 8 SCC 578 dealing with section 296(2) of the Code made the following observation : 8. . . . .If any party to a lis wishes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 145(2) of the Act, on being summoned at the instance of the accused the complainant or any of his witnesses should be first made to depose in examination-in-chief before cross-examination. 26. Mr. Ranjit Kumar next submitted that in giving evidence on affidavit, the deponent (the complainant or any of his witnesses) can introduce hearsay or irrelevant facts in evidence to which the accused could have objected if the deposition was made in Court as examination-in-chief. Hence, the accused must have the right to call the complainant (or his witness giving evidence on affidavit) into the witness box for examina- tion-in-chief so as to get the inadmissible parts in the affidavit excluded from his evidence. Once again the submission is devoid of merit. It is noted above that the evidence given on affidavit by the complainant is subject to all just exceptions . This simply means that the evidence given on affidavit must be admissible and it must not include inadmissible materials such as facts not relevant to the issue or any hearsay statements. In case the complainant s affidavits contain statements that are not admissible in evidence it is always open to the accused to point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implications, it appears that this was the intention of the Legislature... 38. It has also been stated in the said volume of Halsbury s Laws of England at page 574 that: The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament. (p. 460) 30. Coming now to the last question with regard to the right of the accused to give his evidence, like the complainant, on affidavit, the High Court has held that subject to the provisions of sections 315 and 316 of the Code of Criminal Procedure the accused can also give his evidence on affidavit. The High Court was fully conscious that section 145(1) does not provide for the accused to give his evidence, like the complainant, on affidavit. But the High Court argued that there was no express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it proper to incorporate a word accused with the word complainant in section 145(1). . . . , it was not open to the High Court to fill up the self-perceived blank. Secondly, the High Court was in error in drawing an analogy between the evidences of the complainant and the accused in a case of dishonoured cheque. The case of the complainant in a complaint under section 138 of the Act would be based largely on documentary evidence. The accused, on the other hand, in a large number of cases, may not lead any evidence at all and let the prosecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant s evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant s evidence and to extend the same option to the accused as well. 33. Coming back to the first error in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave constantly admonished there bretheren of the need for discipline in observing the limitations. A Judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction. 35. In Duport Steels Ltd. v. Sirs [1980] 1 All ER 529, 534, Lord Scarman expounded the legal position in the following words: But in the field of statute law, the Judge must be obedient to the will of Parliament as expressed in its enactments. In this field, Parliament makes and unmakes the law. The Judge s duty is to interpret and to apply the law not to change it to meet the Judge s idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing construction are possible. But our law require the Judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the Judge may say so and invite Parliament to re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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